[Cites 9, Cited by 0]

Punjab-Haryana High Court

Jaspreet Singh vs State Of Punjab And Others on 10 April, 2026

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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

JASPREET SINGH ......... PETITIONER

VERSUS

STATE OF PUNJAB AND OTHERS ..... RESPONDENTS

1. Judgment reserved on 13.01.2026
2. Judgment pronounced on 10.04.2026
3. Judgment uploaded on 10.04.2026
4. Whether only operative part of the judgment is
pronounced or whether the full judgment is Full
pronounced.
5. The delay, if any of the pronouncement of full Nil
judgment and reason thereof.

CORAM: HON'BLE MR. JUSTICE YASHVIR SINGH RATHOR

Argued by : Mr. Lalit Pathak, Advocate
for the petitioner.

Ms. Aiman J. Chishti, AAG, Punjab.

Mr. G.S. Brar, Advocate with
Mr. Abhishek Narang, Advocate and
Mr. J.S. Khaira, Advocate for respondent No.4.
****
YASHVIR SINGH RATHOR, J.

1. The present writ petition has been filed under Section 226 of

the Constitution of India for the issuance of Writ in the nature of habeas

corpus and for appointment of a Warrant Officer with a roving Writ to

search for the detenues namely Divleen Kaur daughter of Jaspreet Singh

aged about 5 years and Samrathjot Singh son of Jaspreet Singh aged

about 3½ years at the premises of respondent No.4 or at any other place,

and get the detenues released from the illegal custody of respondent

No.4.

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2. Case of the petitioner is that his marriage was solemnized

with one Rajbir Kaur and two children namely Divleen Kaur and

Samrathjot Singh were born out of said wedlock. However, the relations

between him and his wife were not cordial and on 11.09.2024, petitioner

as well as Rajbir Kaur consumed some poisonous substance due to which

both of them were hospitalized in DMC Hospital, Ludhiana. However,

during treatment, Rajbir Kaur died on 13.09.2024. Thereafter, FIR

No.152 dated 14.09.2024 was registered under Section 108, 3(5) of BNS,

2023, Police Station Basti Bawa Khel, Jalandhar against the petitioner as

well as his sister Harkirtan Kaur for abetment of suicide by Rajbir Kaur

and the petitioner was arrested. In the meanwhile, respondent No.4-who

is sister of Rajbir Kaur, took over the custody of his children. Petitioner

was released on bail vide order 11.12.2024 passed by the learned

Additional Sessions Judge, Jalandhar. Thereafter, he approached

respondent No.4 to hand over the custody of his children to him but

respondent No.4 refused to hand over the custody of the children. It is

further submitted that the act of respondent No.4 is illegal and in gross

violation of the fundamental rights of the petitioner and the children and

respondent No.4 is not the lawful guardian of the children under any law.

The custody of both detenues has been forcibly taken away from the

biological father, which is illegal. It is further submitted that petitioner is

the natural guardian of the minor children under Section 6 of the Hindu

Minority and Guardianship Act, 1956 (for short 1956 Act) and respondent

No.4 has no legal authority or right over the minor children and she has

wrongfully confined his minor children with herself. Petitioner is doing a

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Government job and is fit to take care of the children. It is further

submitted that respondent No.4-sister-in-law of petitioner has filed one

case No.GW-12-2025 under the Guardians and Wards Act, 1890 before

District Court Kapurthala for appointing her as legal guardian of the

minor children and for restraining the petitioner from obtaining the

custody of the minor children.

3. By way of present petition, it has been prayed that present

petition be allowed and respondent No.4 be directed to immediately

release the detenues/minor children from her illegal and unlawful

detention and their custody be handed over to him.

4. Reply has been filed on behalf of the State. As per the reply,

both the minor children are being taken care of by respondent No.4-

Harmandeep Kaur. The respondent No.4 has filed one case No.GW-12-

2025 under the Guardians and Wards Act, 1890 before Family Court

Kapurthala. Since the aforesaid case is already subjudice before Family

Court, Kapurthala, the petitioner is at liberty to raise the pleas in the

present petition before that forum. Therefore, no interference is called for

by the police at this stage.

5. The parties have been heard and material placed on the file

has been perused.

6. Learned counsel for petitioner argued that petitioner is the

natural guardian of the minor children being their father under Section 6

of 1956 Act. He is an educated person and is a government employee. His

financial condition is sound and he is in a better position to look after the

minor children. He can shape the career of the minor children in a better

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manner. Respondent No.4, who is the sister of petitioner's wife has taken

the custody of the minor children illegally and she is not entitled to keep

them in her custody and as such, the custody of minor children be handed

over to the petitioner. In support of his contentions, learned counsel has

relied upon 2019 (3) RCR (Civil) 104, Tejaswini Gaud Vs. Shekhar

Jagdish Prashad Tewari and 2024 (4) RCR (Civil) 98, Gautam Kumar

Das and NCT of Delhi and others.

7. On the other hand, learned counsel for respondent No.4

argued that petitioner was married with the sister of respondent No.1 and

both the children were born out of their wedlock. He was not having

cordial relations with his wife and on 11.09.2024, petitioner as well as his

wife Rajbir Kaur consumed some poisonous substance, as a result of

which, they both were hospitalized. Petitioner luckily survived but his

wife unfortunately died and thereafter, one FIR has been registered

against the petitioner under Section 108 and 3(5) BNS, 2023 for abetment

of suicide by his wife and he was arrested. In his absence, both the minor

children were taken care of by respondent No.4, who is their aunt/Mausi.

Petitioner is facing trial for abetting the suicide by his wife, who is

mother of the minor children and he certainly has suicidal tendencies and

the custody of the minor children should not be handed over to him, who

are being looked after very well by respondent No.4. Learned counsel

next contended that a petition for guardianship has already been instituted

before the Family Court which will decide the rival contentions of both

the parties and the custody of minor should not be handed over to the

father under Writ of Habeas Corpus. Detailed inquiry is required to be

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held as to whom custody of minor children should be handed over and

this Court should not exercise its extraordinary jurisdiction under Article

226 of the Constitution of India in view of the peculiar facts and

circumstances of the present case and learned counsel prayed that the

petition in hand be dismissed.

8. Hon'ble Supreme Court in 2001(2) RCR (Criminal) 591

titled as `Syed Sleemuddin Vs. Dr. Rukhsana', has held that in an

application seeking a Writ of Habeas Corpus for custody of minor

children, the principal consideration for the Court is to ascertain whether

custody of the children can be said to be unlawful or illegal and whether

the welfare of the child requires that the present custody should be

changed and the child should be left in the care and custody of somebody

else. The principle is well settled that in the matter of custody of a child,

the welfare of the child is of paramount consideration.

9. Hon'ble Supreme Court in Tejaswini Gaud's case (supra),

while deciding whether writ petition is maintainable or not has held that

ordinarily remedy lies only under the Hindu Minority and Guardianship

Act or the Guardians and Wards Act, as the case may be. It is only in

exceptional cases that the rights of the parties seeking the custody of

minor can be determined in exercise of extraordinary jurisdiction in a

petition for habeas corpus. Relevant extract from the said judgment is

reproduced as under:-

"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived

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of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

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10. It is well settled that habeas corpus is a prerogative Writ

which is an extraordinary remedy. Recourse to such a remedy should not

be permitted unless the ordinary remedy provided by law is either not

available or is ineffective. In child custody matters, the power of the High

Court in granting the writ is qualified only in cases where the detention of

a minor is by the person, who is not entitled to his custody. The writ of

Habeas Corpus is maintainable where it is proved that detention of a

minor child by the parents or others was illegal and without any authority

of law. The ordinary remedy for custody of a child lies under Hindu

Minority and Guardianship Act or the Guardians and Wards Act, as the

case may be. The exercise of power by a Writ Court is summary in

nature, whereas, detailed inquiry is to be held under Guardians and Wards

Act taking into consideration the welfare of the child and where the Court

is of the view that a detailed inquiry is required, the Court may decline to

exercise the extraordinary jurisdiction and direct the parties to approach

the Family Court. As such, as to whether, Writ Court should exercise its

extraordinary jurisdiction under Article 226 of the Constitution of India

or not will depend on the facts and circumstances of each case.

11. In the present case, there is no dispute that petitioner is the

natural guardian of the minor children. His wife has already died. Both of

them consumed some poisonous substance on account of which his wife

died but he luckily survived. He was arrested by the police and was later

on released on bail but during this period, the custody of children was

taken over by respondent No.4, who is the Aunt/Mausi of the children

and they are living with her since then. Petitioner thus has suicidal

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tendencies and it is thus to be determined whether he is fit to be a

guardian or not for which detailed inquiry is required to be held by the

Family Court in the petition under Guardians and Wards Act which has

already been instituted. Hon'ble Supreme Court in 2010 (2) SCC 654,

Athar Hussain vs. Syed Siraj Ahmed and others, has held that Court

has no jurisdiction to appoint guardian other than father, but interim

custody can be given to other person where proceedings for appointment

of guardian are pending and in that case, interim custody was given to the

maternal grandfather as the children were residing with maternal

grandparents since the death of their mother and it was held that interest

of the children will be duly served if their current residence was not

disturbed and irreparable injury will be caused to the children if they,

against their will, are uprooted from their present settings. In 2020 SCC

Online All 1372, Shaurya Gautam (Minor) and Another Vs. State of

U.P. and 4 Others, custody of the minor was denied to father as he was

facing trial on the charge of murder of his wife and rather the minors

were placed in the care and custody of the Ashram.

12. Learned counsel for the petitioner has also relied upon

Tejswani Gaud's case (supra) to contend that merely because

respondent No.4 being a relative took care of the child for some time, she

cannot retain custody of the children and the decision of the High Court

handing over custody of the child to the father was upheld. However, the

Tejswani Gaud's case (supra) is not applicable to the facts of the case in

hand as in that case, the mother of the child had died a natural death due

to cancer and father was also suffering from tuberculosis meningitis, as a

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result of which the custody of the children was handed over to sister of

the mother/Aunt of the children under unavoidable circumstances and

when father got cured, he was given the custody of the minor children

and it was held that custody cannot be handed over to the relatives.

Likewise, Gautam Kumar Das's case (supra) is also not applicable to

the facts of the case in hand, in which the custody of the minor girl was

given to sister-in-law as a temporary measure and it was held that custody

cannot be denied to natural guardian.

13. As already mentioned above, petitioner himself is facing trial

for abetting suicide by his wife, who was mother of the children and he

himself had attempted to commit suicide but he survived and as such, a

detailed inquiry is required to be held by the Family Court as to whether

petitioner is fit to get the custody of the minor children or not and this

Court in exercise of its powers under Article 226 of the Constitution of

India cannot order handing over of the custody to the petitioner.